STANDARD TERMS AND CONDITIONS FOR SOLOFIRE
These Standard Terms and Conditions for SoloFire Dynamic Configuration Platform (DCP) supplement the Ascend Software SoloFire™ Software-as-a-Service (Saas) Agreement between Ascend Software, LLC (“Ascend”) and the Customer (the “SaaS Agreement”).
In addition to words and phrases defined elsewhere in these Standard Terms and Conditions or in the SaaS Agreement, the following words and phrases shall have these meanings:
1.1 “Access” means any occurrence in which Customer or any of its Users uses the SaaS Services by logging onto or otherwise accessing the Ascend Software SoloFire Dynamic Configuration Platform (DCP) (“SoloFire” or “SoloFire System”) or any other Services.
1.2 “Affiliate” means any Person that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, another Person.
1.3 “Agreement” means the SaaS Agreement between Ascend and the Customer, as supplemented by these Standard Terms and Conditions.
1.4 “Copy” means any copy or other reproduction, in whole or in part, of the specified item or information, whether made by mechanical or any other means.
1.5 “Documentation” means any and all documentation and other written materials pertaining to SoloFire or the Services that Ascend provides to Customer pursuant to the Agreement.
1.6 “Error” means a bug, flaw, failure, or fault in the SoloFire system that causes it to produce an incorrect or unexpected result or to behave in unintended ways, as compared to Ascend’s published descriptions of the SoloFire system. Ascend will categorize Errors according to the “Severity” levels below, as Ascend determines.
1.7 “Fix” means the correction of an Error in the SoloFire System.
1.8 “Ascend System” means all of the hardware and Software that Ascend uses to configure, service, and maintain SoloFire, in order to provide the SaaS Services to Customer.
1.9 “Intellectual Property” and “Intellectual Property Rights” mean patents, patent rights, patent applications, and continuing (continuation, divisional, or continuation-in-part) applications, re-issues, extensions, renewals, and re-examinations thereof and patents issued thereon; registered and unregistered trademarks and service marks, trademark and service mark rights, trade names, and domain names (“Marks”); registered and unregistered copyrights; trade secrets and inventions, whether patentable or unpatentable; any and all other intellectual, industrial, or proprietary rights as now exist or hereafter come into existence; and pending applications for and registrations of any of the foregoing; whether arising under the laws of the United States or laws of any other state, country, or jurisdiction in the world. All references to a Party’s Intellectual Property Rights means all Intellectual Property Rights owned worldwide by such Party or under which such Party has the right to grant licenses to the other Party of the scope granted herein without the payment of additional consideration to any Person.
1.10 “Laws” means any and all applicable federal, state, foreign, and international laws, rules, regulations, codes, statutes, ordinances, requirements, plans, treaties, compacts, proclamations, conventions, orders, and all official interpretations of the foregoing.
1.11 “New Feature” means any change in the SoloFire system that provides new or additional functionality from that described in Ascend’s published descriptions of the SoloFire System, including without limitation additional supported file types, uploaders, and other new features.
1.12 “Person” means any individual, corporation, partnership, trust, limited liability company, association, organization, governmental authority, or other legal entity of any kind.
1.13 “Severity 1 Error” means an Error that makes the SaaS Services inoperative. When trying to use the SaaS Services, the User is prevented from performing a necessary function, and there is no Workaround.
1.14 “Severity 2 Error” means an Error in which major functionality is experiencing a reproducible problem that causes major inconvenience to the User. A Workaround may exist but it has high User impact.
1.15 “Severity 3 Error” means an Error in which an important function is experiencing an intermittent problem or a common non-essential operation is failing consistently.
1.16 “Software” means, as the context requires, source code or object code instructions for controlling a central processing unit or computer, and files containing data, text, or graphics.
1.17 “Territory” means the world, except as may be prohibited by applicable Laws, including without limitation the export and technology control laws of the United States.
1.18 “User” means an individual employed or retained by Customer who receives Access to the SoloFire System or other Services in compliance with the Agreement.
1.19 “Workaround” means a change in the procedures followed or data supplied by Customer to avoid an Error without substantially impairing use of the SaaS Services.
2. ADDITIONAL SERVICE TERMS
2.1 SaaS Services Uptime.
(a) Uptime. Ascend will use reasonable efforts to maintain the availability of the SaaS Services 24 hours a day and seven days a week, except during Scheduled Maintenance (addressed below) and emergency maintenance, which Ascend will conduct on an “as needed” basis.
(b) Downtime. For any time outside of Scheduled Maintenance and emergency maintenance that the SaaS Services are not available to Customer (“Downtime”), Ascend will make reasonable efforts to identify the source of the Downtime. If Ascend determines that the source of the Downtime is within Ascend’s control, Ascend will make reasonable efforts to remedy the Downtime and optimize it systems to try to prevent repeat occurrences. If Ascend determines that the source of the Downtime is Customer, its application, or its systems, or a third party source, Ascend will make general recommendations to Customer for addressing such Downtime. The efforts stated in this Section 2.1(b) shall be Customer’s sole and exclusive remedy for Downtime.
(c) Customer Obligations. Customer shall provide all assistance reasonably requested by Ascend to identify the source of and take corrective action with respect to Downtime.
(d) Exceptions. Ascend shall have no responsibility with respect to any of the following: (i) Downtime associated with modifications to Customer’s applications; (ii) Downtime due to Scheduled Maintenance or emergency maintenance; (iii) Downtime during periods when Customer’s account is not in good financial standing or Customer is in violation of this Agreement; (iv) Downtime due to circumstances beyond Ascend’s reasonable control, including without limitation acts of any governmental body, war, sabotage, embargo, fire, flood, extended unavailability of public utility service or unavailability of or delay in telecommunications, third-party Internet service providers, third-party software, hardware failures, the failure or degradation of third-party connectivity services, or downtime or Access degradation caused by Customer’s networks or devices or the Internet; (v) Downtime caused by Customer’s failure to provide reasonable assistance; or (vi) Downtime due to Customer negligence, abuse, misapplication, or misuse of SaaS Services or any other use of SaaS Services other than as specified in Ascend’s Documentation.
(e) Scheduled Maintenance. “Scheduled Maintenance” means any maintenance scheduled and undertaken by Ascend. Ascend will notify Customer at least 48 hours in advance of any Scheduled Maintenance. Ascend will make reasonable efforts to perform Scheduled Maintenance during historically low use hours based on average use by all Ascend customers.
(f) Expected Unusual Volume. Customer agrees to inform Ascend within three (3) business days in advance of when Customer expects there to be unusually high levels of Access to SoloFire. Such notice will be made via email to email@example.com.
2.2 SoloFire Error Correction.
(a) Severity 1 Errors. Ascend will promptly commence the following procedures upon notification of the problem during Regular Hours and upon confirmation by Ascend that the Error is a Severity 1 Error: Within the first four (4) business hours, Ascend will commence documenting, recreating, and attempting to resolve the problem. If a resolution has not been determined after the initial four (4) business hours, Ascend will mobilize a technical team to troubleshoot the problem and define solution options. Ascend will assign a company representative to oversee and report on all corrective action activities. An Ascend company representative will initially notify Customer of problem resolution status and will report on the status every twenty-four (24) hours thereafter.
(b) Severity 2 Errors—Ascend will exercise reasonable efforts to provide a Fix as soon as an Error has been identified and the appropriate Fix developed.
(c) Severity 3 (or lower) Errors—Ascend will exercise reasonable efforts to include the Fix for the Error in a future release of the software used in SoloFire for the SaaS Services.
(d) New Features–New Features are not included in these Support Services. Requests for New Features will be treated as requests for Custom Services.
(e) Customer Obligations. Customer is responsible for providing prompt and sufficient information and data to allow Ascend to readily reproduce all reported Errors. If Ascend believes that a problem reported by Customer may not be due to an Error in the SaaS Services, Ascend will so notify Customer.
(f) Exclusions. (i) Customer Systems: Errors that cannot be reproduced outside of the Customer’s system (“Non-Reproducible Errors”) are likely caused either by Customer’s non-compliance with Ascend’s Technical Requirements or by the unique hardware or software setup or conditions of Customer’s system or devices. Non-Reproducible Errors are not covered by the Agreement but will be addressed upon Customer’s request, at Ascend’s then-current hourly Custom Services rates, and may involve, among other things, the need for Customer bring its system and devices into compliance with the Technical Requirements. (ii) Customer Applications: Errors that result from Customer’s applications, rather than the SoloFire system itself, are not covered by these Support obligations but will be addressed by Ascend, at Customer’s request, either (i) pursuant to the Limited Warranty that Ascend provided in connection with development of the Customer’s applications, subject to the terms and conditions of the development agreement, (ii) pursuant to an App Maintenance agreement between Customer and Ascend, subject to the terms and conditions of the App Maintenance agreement, or (iii) at Ascend’s then-current hourly Custom Services rate. (iii) Other Exclusions: Ascend shall have no obligation to provide Error correction or support with respect to: (A) Access problems caused by Customer’s negligence, abuse, misapplication, or misuse of SaaS Services, or any other use of SaaS Services other than as specified in Ascend’s Documentation; or (B) any other circumstances beyond Ascend’s reasonable control, including but not limited to acts of any governmental body, war, sabotage, embargo, fire, flood, extended unavailability of public utility service or unavailability of or delay in telecommunications, third-party Internet service providers, third-party software and software updates, hardware failures, the degradation or failure of third-party connectivity services, or downtime or Access degradation caused by Customer’s networks or devices or the Internet.
2.3 Timely Performance of Custom Services Plans.
Ascend agrees to exercise commercially reasonable efforts to meet the schedule set forth in any mutually-agreed-upon proposal for Custom Services (each, a “Custom Services Plan”). If Customer becomes aware of any circumstance(s) that may delay Customer’s completion of any item that a Custom Services Plan requires Customer to complete or that is otherwise required for Ascend to complete any item required by the plan, Customer will promptly inform Ascend of the anticipated delay and the reason(s) for it in writing. If any such delay causes a delay in Ascend’s timely performance of any item in the Custom Services Plan, the Custom Services Plan schedule will be deemed automatically extended by the same number of days as Customer’s delay.
2.4 Additional Limitations and Restrictions on Services.
(a) License Not Ownership. The rights granted to Customer in the Agreement do not constitute a sale of, or transfer of any ownership interest in or to, SoloFire or any portion thereof, the Ascend System, any Documentation, or any portion or Copy of any of them.
(b) Service Levels Not Warranty. The service levels and remedies set forth in Schedule 1 to the SaaS Agreement and in these Standard Terms and Conditions constitute Customer’s sole and exclusive remedies for any and all Services-related claims. In addition, all Services, work product, Documentation, and other materials provided to Customer pursuant to this Agreement are subject exclusively to the warranty provisions of this Agreement, and the terms and conditions of Schedule 1 to the SaaS Agreement do not change or supersede any warranties, limitations, and disclaimers contained herein.
(c) Prohibited Activities. Unless otherwise expressly provided for in the Agreement, Customer may not engage or permit any third Person to engage in any of the following activities: (i) copy any Documentation; (ii) modify, translate, or create derivative works of any Documentation; (iii) disassemble, decompile or reverse engineer any Software of Ascend; (iv) publish, or otherwise make available to any third Person, any benchmark testing information or results relating to SoloFire; or (v) export or otherwise provide Access to SoloFire in violation of any United States export or technology control Laws. Customer may make a reasonable number of copies of the Documentation, however, to enable Customer properly to exercise the rights granted under the Agreement.
(d) All Other Rights Reserved. Except as expressly set forth in the Agreement, Ascend grants to Customer and its Users no rights or licenses in or to SoloFire, the Ascend System, or any of the Documentation, whether by implication, estoppel or otherwise. Ascend hereby reserves any and all rights not expressly granted in the Agreement. Except as expressly set forth in this Agreement, nothing in the Agreement shall be construed to restrict or otherwise limit Ascend from exercising its Intellectual Property Rights in SoloFire, any Documentation, or any other Intellectual Property associated with its Services, including but not limited to the license, sale, rental, lease, lending, or distribution of, or the provision of services with respect to, SoloFire and any Documentation.
3. ADDITIONAL COMPANY OBLIGATIONS
In addition to its other obligations set forth in the Agreement, Customer shall have the following obligations with respect to Ascend’s provision of the Services:
3.1 Fees and Payment
(a) Terms. Customer shall pay all amounts that the Agreement requires Customer to pay Ascend in U.S. dollars, without offsets or deduction of any kind. Any and all amounts not received by Ascend by the due date shall accrue interest at the rate of one and a half percent (1.5%) per month or the maximum legal rate allowed by law, whichever is less. All purchase orders, invoices, acknowledgements, requests, and notices under the Agreement shall be subject only to the terms and conditions of the Agreement, regardless of the execution of any purchase order or invoice by one or both Parties, any acknowledgement, or any failure of Ascend to object to any terms or conditions contained in such documents or other communications. The Parties may agree in writing, however, to non-preprinted terms that supplement but do not conflict with this Agreement or that modify or supersede any conflicting terms that the writing specifically identifies, which writing shall be effective only if and when executed by authorized representatives of both Parties.
(b) Taxes and Other Assessments. The Ascend prices and fees set forth in the Agreement are exclusive of any and all applicable taxes. Customer agrees to pay, and shall indemnify and hold Ascend harmless from, any and all applicable federal, state, local, and foreign sales, use, value-added, alternative, add-on minimum, transfer, property, franchise, license, excise, import, export, registration, and other taxes, duties, tariffs, and fees that are associated with Customer’s use of the Services and other exercise of Customer’s rights under the Agreement (“Taxes”), but excluding any taxes on Ascend’s net income, capital, or gross receipts or any withholding taxes required by law if such withholding tax is allowed as a credit against the United States income taxes of Ascend. For any such withholding taxes, Customer agrees to provide Ascend all documentation substantiating the withholding and the associated tax remittance. All such properly-documented withholding taxes shall be credited against amounts that Customer owes to Ascend. If Ascend is required to remit any Taxes on behalf or for the account of Customer, Customer agrees to reimburse Ascend within ten (10) days after Ascend provides Customer written notice and documentation of such remittance.
(c) Invoice Disputes. Within thirty (30) days from the date of any invoice issued by Ascend to Customer, Customer agrees to give Ascend written notice of any dispute Customer may have with respect to such invoice. If Customer fails to do so, the invoice shall be conclusively deemed accurate.
3.2 Customer System.
Customer shall procure and maintain, at Customer’s sole expense, all of the hardware and Software necessary and appropriate for Customer to maintain its own network environment, all necessary and appropriate connections to SoloFire, and all devices that Customer desires to connect with SoloFire. All such hardware and software shall meet the Technical Requirements.
3.3 Customer Information and Cooperation.
Customer shall provide all documents, forms, and other information reasonably requested by Ascend technicians with respect to providing the SaaS Services to Customer. Customer shall also make its personnel available for training in accordance with a training schedule approved by Customer and Ascend. Prior to the start of the SaaS Services, Customer shall have complied with the Technical Requirements for each Customer network, system, and device that Customer desires to connect with SoloFire.
3.4 Performance of Custom Services Plans
(a) Project Coordinator. Customer agrees to designate a project coordinator for each Custom Services Plan (“Project Coordinator”) who shall be the primary point of contact for Ascend personnel for that plan. The Project Coordinator shall work with the Ascend personnel to facilitate the provision of Custom Services under the Agreement.
(b) Timely Performance; Delays. Ascend agrees to exercise commercially reasonable efforts to complete all items required of it in any Custom Services Plan, including but not limited Schedule 1-A, in accordance with the schedule set forth in such Custom Services Plan. If Ascend becomes aware of any circumstance(s) that may delay Ascend’s completion of any item that a Custom Services Plan requires Ascend to complete or that is otherwise required for Customer to complete any item required by the Custom Services Plan, Ascend will promptly inform Customer of the anticipated delay and the reason(s) for it in writing. If any such delay causes a delay in Customer’s timely performance of any item in the Custom Services Plan, the Custom Services Plan schedule will be deemed automatically extended by the same number of days as Ascend’s delay.
3.5 Security Measures and Access
(a) Security Measures. Customer agrees to take and to require its Users to take reasonable and appropriate security measures with respect to the SaaS Services and SoloFire, including but not limited to: (i) granting user and password permissions only to authorized Users, (ii) requiring Users to use strong passwords, (iii) deactivating password authorization within twenty-four (24) hours after any Person discontinues employment with Customer or otherwise ceases to be a User; (iv) requiring ongoing scans for Malicious Software for all personal computers (PCs) that access SoloFire, and (v) requiring password-protected screen lockouts after periods of inactivity for all administrator devices. All other security measures deemed necessary or appropriate by Customer, such as protecting against unauthorized access to User devices, are Customer’s sole and exclusive responsibility.
(b) Users. Customer will take such actions as are necessary to maintain the confidentiality of, and prevent the unauthorized use of, each password and key, including entering into appropriate agreements with its employees and contractors who are Users. Customer will immediately notify Ascend in writing if Customer determines, or has reason to believe, that an unauthorized Person has gained access to a password or key or Accessed SoloFire. Customer authorizes Ascend to rely upon any information or instructions set forth in any data transmission using the assigned password or key, without making further investigation or inquiry, and regardless of the actual identity of the Person transmitting the same, in connection with the operation of Ascend. Use of the assigned password or key, whether or not authorized by Customer, shall be solely the responsibility of and the risk of Customer. Customer agrees to indemnify, defend, and hold harmless Ascend and its directors, managers, officers, employees, and agents (consistent with Section 8.2 below) from, against, and for any and all losses, costs, damages, expenses (including, without limitation, reasonable attorneys’ fees, expert witness fees, court costs, and other expenses), fines, suits, proceedings, claims, demands, rights of recovery, or actions of any kind or nature (whether based on tort, contract, trade, regulatory, or other law) arising from or relating to any use, misuse, or unauthorized use of Customer’s passwords and keys.
4. INTELLECTUAL PROPERTY
4.1 Ascend and Third-Party Intellectual Property.
(a) Ownership. Except for the rights expressly granted in the Agreement, Ascend and its lessor(s) or licensor(s) shall exclusively own and retain all right, title, and interest in and to SoloFire, the Ascend System, and any other Ascend Intellectual Property used in providing the Services, all related Documentation, and all Intellectual Property Rights embodied therein or used thereby, Without limiting the generality of the foregoing, all right, title, and interest in and to all Software, technology, and other Intellectual Property developed in the performance of any Custom Services or other Services relating to SoloFire, the Ascend System, or any other Ascend technology, including but not limited to all Software, API, notes, designs, models, prototypes, drawings, data storage media, listings, technical data, and other work product created in the performance of such Services, and all Intellectual Property Rights relating thereto, whether or not created solely by Ascend or with the participation of Customer, shall belong exclusively to Ascend (“Ascend Intellectual Property”). The Parties shall take all reasonable actions, at Ascend’s request and expense, to confirm, perfect, and protect such ownership.
(b) Use of Ascend Intellectual Property. Except as expressly authorized in the Agreement, neither Customer nor any of its Users shall copy, sell, assign, sub-license, rent, loan, transfer, use, or provide Access to or use of the Services, SoloFire, the Ascend System, the Documentation, or any other Ascend property or Ascend Intellectual Property, without Ascend’s prior written permission. Any third party Software or other technology shall be subject to the terms and conditions of the license or agreement under which such third party Software or technology, or the use thereof, was made available to Ascend or to Customer. Except as expressly authorized by Ascend in writing, such as in a development agreement, neither Customer nor any of its Users shall (i) disassemble, decompile, or reverse engineer any Software supplied by or given Access to by Ascend, except to the extent that any such activities are permitted by applicable Laws notwithstanding this prohibition and only after seeking assistance from Ascend with respect to any interoperability issues, or (ii) create any derivative works based on any such Software.
4.2 Customer Content and Other Intellectual Property.
(a) Ownership. To the extent that they do not overlap with any Ascend Intellectual Property, Customer shall own all right, title, and interest in and to any and all ideas, concepts, know-how, documentation, techniques, Confidential Information, and other Intellectual Property relating to Customer and its business, and all Intellectual Property Rights therein (“Customer Intellectual Property”). Also, as between Ascend and Customer, all Customer content residing on SoloFire or otherwise provided to Ascend (“Customer Content”) shall be and remain the property of Customer and shall constitute Confidential Information of Customer in accordance with, but subject to, the provisions of Section 5 of the Agreement. The Parties agree to take all reasonable actions, at Customer’s request and expense, to confirm, perfect, and protect its ownership of Customer Intellectual Property and Customer Content.
(b) Use of Customer Content and Other Intellectual Property. Ascend shall only have such limited, non-exclusive, non-transferable license to use Customer Intellectual Property and Customer Content to the extent necessary to perform the Services contemplated by the Agreement, except as Customer may otherwise authorize in writing. Customer shall obtain from its suppliers, and other business contacts all consents and authorizations necessary to enable and authorize Ascend to provide to Customer the Services contemplated by the Agreement. Customer agrees to indemnify, defend, and hold harmless Ascend and its directors, managers, officers, employees, and agents (consistent with Section 8.2 below) from, against, and for any and all losses, costs, damages, expenses (including, without limitation, reasonable attorneys’ fees, expert witness fees, court costs, and other expenses), fines, suits, proceedings, claims, demands, rights of recovery, or actions of any kind or nature (whether based on tort, contract, trade, regulatory or other Law) arising from or relating to any inaccuracies in any Customer Content or any failure by Customer to obtain any necessary consents or authorizations from its suppliers, customers, and other business contacts.
4.3 IP Notices.
Neither Customer nor any of its Users shall remove any patent, copyright, trademark, or other Intellectual Property Rights notice, disclaimer, or warning that is included on or embedded in any part of SoloFire, Documentation, or other Ascend materials, without Ascend’s written authorization. Similarly, Ascend shall not remove any patent, copyright, trademark, or other Intellectual Property Rights notice, disclaimer, or warning that is included on or embedded in any of Customer’s Intellectual Property or Customer Content, without Customer’s written authorization.
5.1 Protection of Confidential Information.
Each Party agrees to keep strictly confidential all confidential and proprietary information disclosed to it by the other Party pursuant to the Agreement (“Confidential Information”), to protect the confidentiality thereof in the same manner and to the same extent that it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of Confidential Information), and to use Confidential Information of the other Party solely for proper performance of the Agreement. Confidential Information will be protected under this Section 5.1 only if it is: (a) provided in written or electronic form or in the form of tangible products or materials; and (b) clearly and prominently identified as Confidential Information of the Party at the time of its disclosure by being marked with an appropriate notice or is disclosed under circumstances clearly indicating the information is confidential or proprietary. Where Confidential Information is disclosed orally or visually, it will only be protected in accordance with the Agreement if the Party making the disclosure delivers a written summary of all confidential aspects thereof to the other Party within thirty (30) calendar days of such oral or visual disclosure.
Except as otherwise provided in the Agreement, the obligations of Section 5.1 shall not apply to any Confidential information that the receiving Party can demonstrate by contemporaneous written records: (a) was generally known to the public before its receipt from the disclosing Party; (b) was generally known in the industry before its receipt from the disclosing Party; (c) becomes generally known to the public, without action on the part of the receiving Party; (d) was already known by the receiving Party; or (e) was received without any obligation of confidentiality from a Person (other than the disclosing Party) lawfully possessing and having the right to disclose such information.
5.3 Injunctive Relief.
Each Party acknowledges and agrees that the unauthorized use, transfer, or disclosure of any Confidential Information of the other Party will cause irreparable injury and render any monetary damages incurred with respect thereto inadequate. In the event of any unauthorized use, transfer, or disclosure, or any threatened unauthorized use, transfer, or disclosure, of any Confidential Information of the other Party, such Party shall be entitled, in addition to any other rights or remedies, at law or equity, as such Party may otherwise have, to equitable relief to protect its interests therein, including, but not limited to, temporary, preliminary, and permanent injunctive relief, without the necessity of establishing irreparable harm and without the requirement of posting bond or other security.
Each Party agrees to notify the other Party promptly in writing in the event that any unauthorized access, disclosure, distribution, possession, alteration, transfer, reproduction, or use of the Confidential Information of the other Party, or any portions thereof, is found or suspected. Each Party also agrees (a) to notify the other Party promptly in writing if any request is made by or through any governmental or quasi-governmental authority, or under any rules or procedures thereof, that would call for the disclosure of any of such other Party’s Confidential Information, and (b) provide reasonable and appropriate assistance to the other Party, at such other Party’s written request and expense, to limit or preclude the required disclosure of such Confidential Information.
The Parties’ obligations under this Section 5 will survive the termination of the Agreement for whatever reason and the termination of any rights granted thereunder.
6. TRADEMARK USAGE
6.1 Private Labeling.
At its option, Customer may request that Ascend (a) private label the customer-facing elements of the SaaS Services using Customer’s Marks, subject to the requirements of Section 6.2; or (b) use the Ascend Marks applicable to the SaaS Services according to the provisions of this Section 6. Except as expressly provided in the Agreement, nothing in the Agreement shall be deemed to give Ascend any right, title, or interest in or to any Customer Marks.
6.2 License to Ascend Marks.
Ascend hereby grants to Customer a non-exclusive, non-transferable license to use the Ascend Marks applicable to the Services in the Territory during the Term in marketing the SaaS Services in compliance with the Agreement. Customer shall not use any Ascend Mark as Customer’s trade name or as part of Customer’s trade name. At Ascend’s request, Customer shall provide specimens or photographs of Customer’s uses of the Ascend Marks and shall verify by affidavit their authenticity and usage.
6.3 Prior Approval.
To ensure proper use of the Ascend Marks, Customer agrees to provide Ascend with samples or photographs of each of Customer’s proposed uses of the Ascend Marks at least ten (10) business days before such use begins. If Ascend does not provide written notice of its disapproval of the proposed use within ten (10) business days after receiving such sample or photograph, the use shall be deemed disapproved by Ascend.
Any use by Customer of any Ascend Marks shall comply with all applicable trademark laws and Ascend’s then-current written guidelines and only as authorized in the Agreement. When using an Ascend Mark, Customer agrees to include the appropriate “TM”, “SM”, or “®” symbol on each such use and to identify Ascend as the owner of the Ascend Mark, in connection with the first use and the most prominent use on or in the particular item. Customer agrees not to use any other Mark in close proximity to any Ascend Mark without Ascend’s written consent.
Customer agrees that its use of the Ascend Marks will not create for Customer any right, title, or interest in or to the Ascend Marks and that all such uses and all goodwill arising therefrom shall inure to the benefit of and belong exclusively to Ascend. Customer shall not use any Ascend Mark in a manner that may undermine or detract from its secondary meaning or good will, nor shall Customer engage in any other conduct that may impair or dilute any Ascend Mark or otherwise diminish its value. Customer shall not contest the validity of any Ascend Mark or Ascend’s ownership thereof or rights therein or assist or encourage any other Person to do so.
6.6 Quality Control.
Customer agrees that the nature and quality of any products or services it supplies in connection with any use of the Ascend Marks shall conform to Ascend’s reasonable quality standards, so that Ascend may protect its interest in the Ascend Marks. Customer agrees to cooperate with Ascend in facilitating Ascend’s monitoring and control of the nature and quality thereof.
7. LIMITED WARRANTY; DISCLAIMERS AND LIMITATIONS
7.1 Limited Warranty.
Subject to Customer’s compliance with the Technical Requirements and the other provisions of the Agreement, Ascend warrants that the functionality of the SaaS Services and related components created and provided by Ascend will substantially conform to Ascend’s published Specifications for them. With respect to any Services provided under the Agreement, Ascend represents and warrants that its employees will use the level of skill and care that would be exercised by independent consultants in the computer and informational technical service industry providing similar services. Except as set forth above, Ascend makes no representations or warranties with respect to SoloFire, any related components, the SaaS Services, or any other Services. If a nonconformity with the foregoing warranty is reported to Ascend in writing within ninety (90) days from the date that Ascend (a) provides Customer Access to the SaaS Services for SoloFire or any updated version of SoloFire or (b) performs any other Services, Ascend shall, at its sole discretion and expense, either use reasonable efforts to remedy the nonconformity or refund the price of the affected Service(s). In the event Ascend elects to provide such a refund, all of Ascend’s obligations with respect to the future provisions of such Service(s) (including Access to SoloFire) will terminate. THIS REMEDY SETS FORTH CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM FOR BREACH OF THE ASCEND LIMITED WARRANTY. Ascend does not represent or warrant that: (i) SoloFire or any of the Services will meet all of Customer’s requirements or needs, (ii) use of SoloFire or the Services will be uninterrupted or error-free, or (iii) all errors in SoloFire or related Services will be corrected.
7.2 DISCLAIMER OF OTHER WARRANTIES.
EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.1, ALL PRODUCTS AND SERVICES PROVIDED BY ASCEND PURSUANT TO THESE TERMS ARE PROVIDED “AS IS,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES, IF ANY, OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (EVEN IF ASCEND HAS BEEN INFORMED OF SUCH PURPOSE), ARE HEREBY EXCLUDED, OTHER THAN THOSE WARRANTIES, IF ANY, THAT ARE IMPLIED BY LAW AND INCAPABLE OF EXCLUSION, RESTRICTION, OR MODIFICATION. THE TIME PERIOD OF ANY IMPLIED WARRANTIES THAT CANNOT BE DISCLAIMED UNDER APPLICABLE LAW SHALL BE LIMITED TO THE LONGER OF NINETY (90) DAYS OR THE MINIMUM PERIOD PERMITTED BY LAW.
7.3 LIMITATION OF LIABILITY.
ASCEND SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO ANY LOSS OF BUSINESS, PROFITS, OR GOODWILL, EVEN IF ASCEND HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHERMORE, NOTWITHSTANDING ANY PROVISION OF THESE TERMS TO THE CONTRARY, ASCEND’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THE AGREEMENT, REGARDLESS OF THE FORM OF ACTION OR THE NUMBER OF CLAIMS, AND WHETHER SUCH ACTION(S) OR CLAIMS ARE BASED ON BREACH OF CONTRACT, WARRANTY, TORT, OR ANY OTHER THEORY OF LIABILITY, REMEDY, OR RECOVERY, SHALL NOT EXCEED THE FEES ACTUALLY PAID TO AND RETAINED BY ASCEND PURSUANT TO THESE TERMS FOR THE SERVICES THAT GAVE RISE TO THE CLAIM(S) OR CAUSE(S) OF ACTION. THE PARTIES AGREE THAT THE LIMITATIONS SET FORTH IN THIS SECTION 7 ARE A MATERIAL PART OF THE CONSIDERATION EXCHANGED BY THE PARTIES, WHICH LIMITATIONS SHALL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
IF APPLICABLE LAW DOES NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF WARRANTIES OR OF LIABILITY OF CLAIMS AND DAMAGES AS SET FORTH IN THESE TERMS, THEY SHALL BE REFORMED AND THE WARRANTIES AND LIABILITY OF ASCEND SHALL BE EXCLUDED AND LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
The provisions of this Section 7 will survive the termination of the Agreement for whatever reason and the termination of any license granted under the Agreement.
8.1 Ascend Obligations.
Subject to the terms and conditions of the Agreement, Ascend agrees to defend, indemnify, and hold harmless Customer and its directors, officers, managers, employees, and agents against any action brought by any third party against any of them, to the extent such action is based on a claim that SoloFire or any Services, as provided and used in accordance with the Agreement, infringe(s) any United States patent issued on or before the Effective Date, a Berne convention country copyright, or United States trade secret (a “Covered Claim”). Subject to the limitations contained in Section 7.3, Ascend shall pay all costs, settlements, and damages finally awarded thereon, including without limitation costs and attorneys’ fees, provided that Customer (a) promptly notifies Ascend in writing of the Covered Claim, (b) gives Ascend sole control of the defense and settlement thereof, and (c) provides all reasonable assistance in connection therewith, at Ascend’s expense. Ascend shall not settle or compromise any Covered Claim without Customer’s express, written consent, which shall not be unreasonably withheld or delayed. Customer shall have the right to participate, at its expense, in the defense of any Covered Claim, through counsel of its own choosing. If SoloFire or any Services are finally adjudged to so infringe, or in Ascend’s opinion is likely to become the subject of such a claim, Ascend shall, at its option, either: (a) procure for Customer the right to continue using SoloFire or the Service; or (b) modify them to make them non-infringing, or (c) refund the fees paid by Customer for their use during the twelve (12) month period preceding the date the Covered Claim arose, and terminate the Agreement. Ascend shall have no liability regarding any claim arising out of or relating to: (v) use of SoloFire or any Services other than as provided in the Agreement or as specified in the Documentation, (w) use of SoloFire or any Services in combination with any software, data, or equipment not supplied by Ascend, if and to the extent that the infringement arises out of such combination, (x) any Modification(s) of SoloFire, Documentation, or Services not made by, or under the express written directions of, Ascend; (y) materials, designs, or specifications provided by Customer to Ascend for its use in performing any Services; or (z) Customer or User misconduct or negligence. THE PROVISIONS OF THIS SECTION 8.1 STATE THE ENTIRE LIABILITY OF ASCEND AND THE EXCLUSIVE REMEDY OF CUSTOMER AND ITS DIRECTORS, OFFICERS, MANAGERS, EMPLOYEES, AND AGENTS RELATING TO INFRINGEMENT OR CLAIMS OF INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
8.2 Customer’s Obligations.
Except for Covered Claims, Customer shall defend, indemnify, and hold harmless Ascend and its directors, officers, managers, employees, and agents from and against any and all claims, demands, or causes of action (including without limitation claims for costs and attorneys’ fees) resulting from, or otherwise arising out of or relating to, the exercise by Customer of the rights granted by Ascend under the Agreement, including but not limited to any claims resulting from, or otherwise arising out of, Customer’s breach of its warranties or other breach of the Agreement or (a) Customer’s or its User’s use of SoloFire or any Services other than as provided in the Agreement or as specified in the Documentation, (b) use of SoloFire or any Services in combination with any software, data, or equipment not supplied by or approved by Ascend, if and to the extent that the claim arises out of such combination, (c) any Modification(s) of SoloFire, Documentation, or any Services made by or on behalf of Customer, except under express written direction of Ascend; (d) materials, designs, or specifications provided by Customer to Ascend for its use in performing any Services; (e) Customer or User misconduct or negligence; or (f) any other matters as to which Customer has agreed to provide indemnification in other sections of the Agreement; provided that Ascend: (i) promptly notifies Customer in writing of any such claim, (ii) gives Customer sole control of the defense and settlement thereof, and (iii) provides all reasonable assistance in connection therewith, at Customer’s expense. Customer shall not settle or compromise any such claim without the prior express, written consent of Ascend, which shall not be unreasonably withheld or delayed. Ascend shall have the right to participate, at its expense, in the defense of any such claim, through counsel of its own choosing.
The provisions of this Section 8 will survive the termination of the Agreement for whatever reason and the termination of any license granted under the Agreement.
A Party may terminate the Agreement by written notice to the other Party, if (a) such other Party breaches any provision of the Agreement or breaches any warranty contained in the Agreement; (b) such other Party becomes insolvent or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors; (c) a petition under any foreign, state, or United States bankruptcy act, receivership statute, or the like, as they now exist, or as they may be amended, is filed by such Party and is not resolved within ninety (90) days; or (d) such a petition or an application to appoint a receiver is filed against such other Party by any third Person, and such petition or application is not resolved in such other Party’s favor within ninety (90) days of its filing.
9.2 Effective Date of Termination.
Termination due to a breach of Section 4 (Intellectual Property), 5 (Confidentiality), or 10.1 (Non-assignment) shall be effective on written notice. In all other cases, termination shall be effective thirty (30) days after written notice of termination to the breaching Party, if the breach(s) have not been cured within such thirty (30) day period, except for Customer’s failure to pay amounts owed to Ascend under the Agreement when due, in which case termination shall be effective five (5) business days after written notice, if such default has not been cured.
9.3 Obligations on Termination
(a) Customer’s Obligations. Upon termination of the Agreement for any reason, Customer shall (i) immediately cease any and all Access to SoloFire and other Services, (ii) immediately cease any and all trademark uses of any Ascend Marks, including but not limited to the phrase “Powered by Ascend”, and (iii) promptly and permanently destroy or return to Ascend all Copies of the Documentation.
(b) Return or Destruction of Confidential Information. Upon termination of the Agreement, the receiving Party shall return all other Confidential Information to the disclosing Party (or, at the disclosing Party’s option, destroy it and provide a certification of such destruction signed by an officer of the receiving Party), and shall not be entitled to make or retain any Copies, except as required to comply with applicable Laws or as necessary to enforce the receiving Party’s rights under the Agreement. If the receiving Party retains any Copies, the requirements of Section 5 shall continue to apply to all such Copies.
(c) Other Obligations. All payment obligations and all claims that arose in favor of the Parties or either of them under the Agreement before termination of the Agreement shall survive such termination. The due dates of all outstanding Ascend invoices to Customer will automatically be accelerated and become due and payable as of the effective date of termination, even if longer terms had been agreed or provided previously.
9.4 Assumption or Rejection Under United States Bankruptcy Code.
If any proceeding under the U.S. Bankruptcy Code (“Bankruptcy Code”) is filed by or against Customer, Customer must assume or reject the Agreement within sixty (60) days after such proceeding is commenced. If Customer does not assume the Agreement within that period, Ascend may, at its option, terminate the Agreement immediately by giving written notice to Customer. Customer agrees that any payments that become due to Ascend after any such proceeding is filed by or against Customer shall be treated as administrative expenses under Section 503 of the Bankruptcy Code and shall be immediately paid to Ascend when due, without the need for Ascend to file an application in the bankruptcy court for payment.
10. GENERAL PROVISIONS
Customer shall not assign, transfer, pledge, or encumber any of its rights or delegate any of its duties or obligations under the Agreement, without the prior written consent of Ascend, which shall not be unreasonably withheld. Any attempt at such an assignment, transfer, pledge, encumbrance, or delegation shall be null and void. For purposes of this Section 10.1, a change in control of Customer, whether through merger, sale of stock, or otherwise, shall be deemed an assignment for these purposes. Subject to the foregoing limitations, the Agreement shall be binding upon and inure to the benefit of the Parties’ successors and permitted assigns.
10.2 Relationship of Parties.
The relationship of the Parties under the Agreement is that of independent contractors, and nothing contained in the Agreement shall be construed (a) to give either Party the power to direct and control the day-to-day activities of the other, (b) to constitute the Parties as partners, joint venturers, co-owners, or participants in any joint or common undertaking, (c) to authorize either Party to accept service of process on behalf of the other Party, or (d) to allow either Party to create or assume any obligation not expressly provided by the Agreement on behalf of the other Party for any purpose. Neither of the Parties and none of their officers, directors, employees, contractors, representatives, agents, or Affiliates shall be deemed to be the employee, agent, representative, or Affiliate of the other Party for any purpose whatsoever by reason of the Agreement.
For the Term of the Agreement and one (1) year thereafter, neither Party shall, without the written consent of the other Party, solicit, interfere with, or endeavor to entice away any manager, officer, employee, agent, or contractor of the other Party who has been involved in the performance of the Agreement, except that either Party may hire a manager, officer, employee, employee, agent, or contractor of the other Party who, without individual solicitation, responds to an advertisement or solicitation aimed at the general public.
No failure by a Party to insist on the strict performance of any covenant, duty, agreement, or condition of the Agreement, or to exercise any right or remedy consequent on a breach thereof, shall constitute a waiver of any such breach or any other covenant, agreement, term, or condition. Either Party may, but shall be under no obligation to, waive any of its rights or any conditions to its obligations hereunder, or any duty, obligation, or covenant of the other Party. No waiver shall be effective unless made in writing and signed by a duly authorized representative of the waiving Party. No waiver shall affect or alter the remainder of the Agreement, but each and every other covenant, agreement, term, and condition hereof shall continue in full force and effect.
All notices, authorizations, and requests in connection with the Agreement shall be deemed given (a) five days after being deposited in the U.S. mail, postage prepaid, certified or registered, return-receipt requested; or (b) one day after being sent by nationally recognized overnight courier, charges prepaid, with a confirming fax; provided they are addressed as first set forth in the SaaS Agreement or to such other address as a Party so designates by written notice.
10.6 Force Majeure.
No failure to perform on the part of either Party shall be considered a breach of the Agreement if such failure to perform results from beyond the reasonable control of the Party alleged to be in default, including, but not limited to, labor disputes, civil disturbances, actions or non-actions of governmental authorities or suppliers, epidemics, war, embargoes, severe weather, fire, earthquakes, widespread Internet outage, acts of God, or default of a common carrier. This provision shall not apply, however, to Customer’s payment obligations to Ascend.
Customer agrees that Ascend may issue a press release or other announcement regarding the selection of Ascend services by Customer. Ascend shall provide a copy of any such proposed press release or other announcement to Customer at least five (5) business days before issuing it, for Customer’s review and approval, unless Customer agrees to shorten the waiting period. If Customer does not provide Ascend written notice of any disapproval of the press release or other announcement within that period, it will be deemed approved. Any notice of disapproval by Customer shall specify the reasons for Customer’s disapproval. Customer agrees that Ascend may use Customer’s name, trademarks and logos in press releases, product brochures, and similar marketing materials, financial reports and prospectuses indicating that Customer is a customer of Ascend, and may use Customer as a reference for sales and public relations purposes. Except as expressly provided in the Agreement, neither Party shall engage in any other publicity with respect to the Agreement except with the other Party’s express prior written consent.
10.8 Compliance with Laws.
Customer shall comply with Laws applicable to exercise of its rights and the performance of its obligations under the Agreement, including but not limited to U.S. export and technology control Laws.
10.9 Rights and Remedies.
Except as otherwise expressly set forth in the Agreement, no right or remedy herein conferred upon or reserved to Ascend is exclusive of any other right or remedy, at law or in equity, but each such remedy shall be cumulative of every other right or remedy now or hereafter existing. None of the provisions of the Agreement are for the benefit of, or are enforceable by, any creditors or customers of a Party or any other third Person.
10.10 Governing Law.
The validity, interpretation, construction, and performance of the Agreement shall be governed by the laws of the State of Utah, without reference to its conflicts-of-laws rules. The federal and state courts sitting in Utah County, Utah (or, if there is exclusive federal jurisdiction, the United States District Court for the District of Utah) shall have exclusive jurisdiction and venue over any and all disputes arising under or relating to the Agreement, and Customer irrevocably consents to the personal jurisdiction and venue of such courts. The United Nations Convention on Contracts for the International Sale of Goods is hereby excluded in its entirety and does not apply to the Agreement. In any dispute arising under or relating to the Agreement, the Party that substantially prevails shall be entitled to recover its costs, expenses, and reasonable attorneys’ fees, including but not limited to those incurred in any and all appeals or other higher court reviews. THE PARTIES HEREBY AGREE THAT NEITHER WILL REQUEST A JURY FOR ANY DISPUTE ARISING UNDER OR RELATING TO THESE TERMS AND EXPRESSLY WAIVE ANY AND ALL SUCH RIGHTS TO A JURY TRIAL THAT MAY EXIST UNDER STATE, FEDERAL, OR OTHER LAW.
10.11 Construction of Agreement.
The section headings in the Agreement are for convenience only and shall not be considered or referred to in construing the Agreement. As used in the Agreement, the term “day” alone shall mean a calendar day, and the term “business day” shall mean any day other, than Saturday and Sunday, during which banks are open for business in Utah. The Agreement shall be construed as though both Parties had drafted it or had equal opportunity to participate in drafting it.
During the term of the Agreement and for a period of three (3) years following the termination of the Agreement, each Party agrees to keep all usual and proper records and books of account and all usual and proper entries and other documentation relating to any and all transactions and other matters contemplated by the Agreement.
10.13 Survival of Terms.
The provisions of the Agreement that by their nature extend beyond the other termination of the Agreement, whether or not expressly stated herein, will survive and remain in effect until all obligations of the Agreement are satisfied.
If any provision in the Agreement is determined by a court of competent jurisdiction to be void, invalid, unenforceable, or illegal, that provision shall be construed, limited, modified or, if necessary, severed, to the extent necessary to eliminate its violability, invalidity, unenforceability or illegality, and the other provisions of the Agreement shall remain unaffected and continue in full force.